Unbundled legal services are one solution to the complex issue of access to justice and are likely to become more commonplace. Being aware of the risks of unbundled legal services will help you reduce your exposure to a malpractice claim. Here are several steps you can take to reduce your exposure to a claim when providing legal services on a limited scope basis. This was excerpted from an article in the January 2012 edition of LAWPRO Magazine, and so often refers to the Ontario Rules of Professional Conduct, but the advice could apply to any lawyer looking to offer unbunbdled services.
- Limited scope representation does not mean less competent or lower quality legal services: For Ontario lawyers, the commentary to Rule 2.01 “Competence” specifies that a lawyer considering whether to provide legal services under a limited scope retainer must carefully assess in each case whether, under the circumstances, it is possible to render those services in a competent manner. and further, new Rule 2.02(6.1) provides that: “Before providing legal services under a limited scope retainer, a lawyer shall advise the client honestly and candidly about the nature, extent and scope of the services that the lawyer can provide, and, where appropriate, whether the services can be provided within the financial means of the client.”
Thus, under the Rules, a lawyer and client can limit the scope of representation and agree on the means used to achieve the client’s goals or objectives. However, while the Rules afford the lawyer and client great latitude to limit the time spent or costs of the representation, the limitation must be reasonable under the circumstances. Limitations will not be considered reasonable if the time allotted is not sufficient to yield advice upon which the client can rely. Lawyers providing unbundled legal services owe the same duties of competence, diligence, loyalty and confidentiality to limited-scope clients that they owe to full-service clients. Don’t be tempted to fall below the required standard of care just because you are handling a matter on a limited scope basis.
- Identify the discrete collection of tasks that can be undertaken on a competent basis: Take the time to understand the specific tasks and/or legal issues on which the client is seeking assistance. Make sure there are discrete tasks that you can undertake on a competent basis, and consider how ethics and court rules apply to the tasks you choose to handle.
- Confirm the scope of the limited retainer in writing: as amended, new Rule 2.02(6.2) directs that “when providing legal services under a limited scope retainer, a lawyer shall cnfirm the services in writing and give the client a copy of the written document when racticable to do so.” Put in writing the discussions nd agreement with the client about he limited scope retainer; doing so will oth assist the client in understanding the imitations of the service to be provided nd document the extent of the retainer n case it is questioned at a later point in time. Rule 2.02(6.3) specifies some limited xceptions to the limited scope retainer riting requirement.
- Clearly document work and communications: at every step of the matter, take steps to ensure it is clear to the client what tasks you are or are not responsible for, and keep a record of all communications (information and instructions provided by the client, advice given by the lawyer). Lawyers can significantly reduce their exposure to a claim by controlling client expectations from the very start of the matter, actively communicating with the client at all stages of the matter, creating a paper trail that documents communications, and confirming what work was done on a matter at each step along the way.
- Be careful with communications when opposing counsel is acting on an unbundled basis: The commentary under Rule 2.02(6.2) provides that: “a lawyer who is providing legal services under a limited scope retainer should consider how communications from opposing counsel in a matter should be managed.” This recognizes that in the unbundled context a lawyer will deal with opposing counsel on the matters within the scope of a limited retainer and directly with a client on matters outside the scope of the retainer. The new Rule 6.03(7.1) provides some specific directions on how and when to communicate with opposing counsel and client in the unbundled context. Note that court rules and procedures have yet to be amended to specifically address some of the issues raised in the unbundling context (e.g., communicating with counsel who is only handling some issues on a matter; dealing with a client under a disability; going on or off the record; or the ghostwriting of pleadings).
Recognize that unbundled legal services are not appropriate for all lawyers, all clients, or all legal problems: Further to new commentary under Rule 2.02(6), limited scope representation will generally not be appropriate if a client’s ability to make adequately considered decisions in connection with the matter or representation is impaired due to minority, mental disability or for other reasons. That commentary states: “a lawyer who is asked to provide legal services under a limited scope retainer to a client under a disability should carefully consider and assess in each case how, under the circumstances, it is possible to render those services in a competent manner.” Lawyers should take care when they are providing unbundled services to clients who are or might be under a disability.
Be careful providing further assistance to a client after a limited scope retainer is terminated: In many cases, a matter handled on a limited scope retainer basis will have started before the lawyer became involved and/or will continue on after the work the lawyer agreed to do was completed. If the client comes back for further assistance, the lawyer should make sure a new full or limited scope retainer is in place.